Fourth Circuit Clarifies that Palomar-Santiago Does Not Eliminate “Procedural-Error” Excusal under 8 U.S.C. § 1326(d)(1)
Commentary on United States v. Victor Castro-Aleman, 4th Cir., 26 June 2025

Introduction

This decision from the United States Court of Appeals for the Fourth Circuit concerns a familiar factual pattern—an undocumented non-citizen re-entering the United States after having been removed—yet it breaks new doctrinal ground in two important respects:

1. It explains in detail how the “fundamental unfairness” prong of 8 U.S.C. § 1326(d) operates when multiple, undisputed grounds for removability exist; and
2. In a footnote that squarely rejects the government’s expansive reading of United States v. Palomar-Santiago, 593 U.S. 321 (2021), the Fourth Circuit holds that an alien may still be excused from the administrative-exhaustion requirement of § 1326(d)(1) if the failure to exhaust itself resulted from a procedural defect in the removal hearing.

Defendant-appellant Victor Manuel Castro-Aleman, a long-time El Salvadoran national who entered the United States as a child in the 1970s, challenged his 2016 removal order in an effort to dismiss an indictment for illegal re-entry under 8 U.S.C. §§ 1326(a) & (b)(1). The district court denied the motion, and the Fourth Circuit has now affirmed.

Summary of the Judgment

The panel (Judge Richardson, joined by Judges Berner and Benjamin) affirmed the district court, holding:

• Castro-Aleman failed to meet § 1326(d)(3) because—even assuming a due-process violation occurred when the Immigration Judge (IJ) inadequately advised him of his right to appeal—he could not demonstrate actual prejudice; three independent, undisputed bases rendered him removable.
• Because § 1326(d) requires all three prerequisites, inability to satisfy the “fundamental unfairness” prong alone doomed the collateral attack, permitting the court to bypass the exhaustion and judicial-review prongs.
• Dictum/holding of broader significance: Palomar-Santiago does not foreclose excusal of § 1326(d)(1) for procedural errors. The Fourth Circuit explicitly parts company with the Sixth Circuit’s contrary view in United States v. Flores-Perez, 1 F.4th 454 (6th Cir. 2021).

Analysis

Precedents Cited and Their Influence

• United States v. Mendoza-Lopez, 481 U.S. 828 (1987) – The foundational case establishing that when defects in deportation proceedings bar judicial review, a subsequent illegal-re-entry prosecution cannot constitutionally rely on that deportation order. Congress codified this rule in § 1326(d).
• United States v. Palomar-Santiago, 593 U.S. 321 (2021) – Clarified that § 1326(d)’s three requirements are conjunctive; a defendant must satisfy each. The government seized on broad language in Palomar-Santiago to insist that no excusal of exhaustion is ever permissible. The Fourth Circuit rejects that interpretation, distinguishing between substantive and procedural defects.
• United States v. Herrera-Pagoada, 14 F.4th 311 (4th Cir. 2021) – Reaffirmed that there is no constitutional right to be advised of eligibility for discretionary relief, directly foreclosing one of Castro-Aleman’s due-process theories.
• United States v. Fernandez-Sanchez, 46 F.4th 211 (4th Cir. 2022); United States v. El-Shami, 434 F.3d 659 (4th Cir. 2005) – Supplied the “actual prejudice” standard for § 1326(d)(3).
• Salazar v. Garland, 56 F.4th 374 (4th Cir. 2023) – Cited to classify Virginia identity-theft as a crime involving moral turpitude.
• United States v. Flores-Perez, 1 F.4th 454 (6th Cir. 2021) – Presented the conflicting view that Palomar-Santiago bars any excusal of exhaustion; the Fourth Circuit expressly repudiates that reading.

Legal Reasoning

1. Statutory Framework – § 1326(d). The court restated that a collateral attack on a prior deportation order in an illegal-re-entry prosecution requires a defendant to demonstrate: (1) exhaustion of administrative remedies; (2) deprivation of opportunity for judicial review; and (3) fundamental unfairness, comprised of a due-process violation and resulting prejudice.
2. Shortcut via § 1326(d)(3). Exercising the freedom to affirm on any ground, the panel focused exclusively on the “fundamental unfairness” prong, finding it dispositive.
3. No Constitutional Right to Record Development on Asylum. Because Supreme Court precedent and Fourth Circuit authority limit mandatory advisals to statutory—not constitutional—requirements, the IJ’s failure to push harder on asylum relief could not create a due-process defect.
4. Assumed Due-Process Violation for Appeal Advisal. Even if the IJ’s compound question did not meaningfully convey the right to appeal, that flaw was harmless absent prejudice. The court emphasized that actual prejudice means a realistic probability the defendant would not have been removed—an inquiry that is outcome-determinative, not simply procedural.
5. Three Independent Grounds for Removability. The record showed:
   • Entry without inspection – 8 U.S.C. § 1182(a)(6)(A)(i)
   • Aggregate sentences > 5 years – § 1182(a)(2)(B)
   • Crime involving moral turpitude – § 1182(a)(2)(A)(i)(I)
   Therefore, any appeal would have been futile; no prejudice existed.
6. Key Precedential Holding on Exhaustion Excusal. In footnote 2 the court rejected the government’s view that Palomar-Santiago barred all excusal of exhaustion. It distinguished substantive challenges (where review can cure the error) from procedural defects eliminating the opportunity for review. The court reaffirmed its earlier decision in United States v. Moreno-Tapia, 848 F.3d 162 (4th Cir. 2017), thereby cementing that procedural-error excusal remains available in the Fourth Circuit.

Impact of the Judgment

The opinion carries significant implications:

• Preservation of Procedural-Error Excusal. Litigants in the Fourth Circuit retain the ability to bypass § 1326(d)(1) when their failure to appeal is itself caused by a procedural due-process defect. This directly diverges from Sixth Circuit precedent and may invite a future circuit split warranting Supreme Court review.
• Higher Bar for “Actual Prejudice.” The court’s thorough application of the prejudice standard underscores that defendants must show plausible non-removability, not just a better chance at discretionary relief.
• Guidance for Immigration Judges. Although the court did not find a due-process violation on record-development, it reiterated statutory obligations for IJs to explain available relief. Practitioners should continue to document failures in that regard for preserving procedural claims.
• Strategic Considerations for Defense Counsel. Post-Castro-Aleman, defense counsel should focus collateral attacks on demonstrating both a concrete due-process defect and a viable path to relief (cancellation, asylum, adjustment) that would have avoided removal.

Complex Concepts Simplified

8 U.S.C. § 1326

The federal illegal-re-entry statute. Subsection (a) sets the basic offense; subsection (b) enhances penalties when prior removal followed criminal convictions.

§ 1326(d) Collateral Attack

A statutory mechanism allowing the defendant to argue, during a criminal prosecution for illegal re-entry, that the underlying removal order was so procedurally flawed it cannot constitutionally serve as an element of the offense.

Administrative Exhaustion

The requirement that a non-citizen first pursue all available appeals within the immigration system (e.g., to the Board of Immigration Appeals) before raising issues in a later court proceeding.

Actual Prejudice

In this context, proof that the defendant probably would have avoided removal had the procedural error not occurred, typically by showing eligibility for a status or relief that would have halted deportation.

Procedural vs. Substantive Defect

A procedural defect concerns the fairness of how the hearing was conducted (e.g., lack of notice of appeal rights); a substantive defect concerns whether the IJ’s ultimate legal conclusion was correct.

Conclusion

United States v. Castro-Aleman reiterates that § 1326(d) sets a demanding, three-part test—every prong must be satisfied. The court’s pragmatic focus on prejudice shows that when multiple, unassailable grounds for removability exist, collateral attacks will fail even if certain procedural missteps occurred.

Most importantly, the Fourth Circuit’s explicit statement that Palomar-Santiago does not obliterate the “procedural-error” excuse under § 1326(d)(1) preserves an avenue of relief for defendants who were denied a meaningful opportunity to appeal. This creates a clear split with the Sixth Circuit and fortifies within the Fourth Circuit the principle that process still matters—where the process itself forecloses review, exhaustion may be excused. Practitioners should parse removal transcripts for procedural irregularities while being prepared to establish concrete prejudice. Immigration judges, meanwhile, are on notice that scrupulous advisals of appeal rights remain essential to safeguard both fairness and the finality of their decisions.